In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

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(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

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(Part I of II) David Rivkin goes live on the second hour on Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.

(Part II of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.

Congress’s power to regulate interstate commerce is broad but not limitless.

(published in The Wall Street Journal, March 21, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

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(Published in The National Review Online, February 29, 2012)

By David B. Rivkin, Jr. and Andrew Grossman

Theresa Riffey provides help around the home for her brother, a quadriplegic, and receives a small stipend from Illinois’s Medicaid program for her efforts, saving the state the cost of providing full-time care. Illinois law requires her to pay a portion of her check every month to an affiliate of the Service Employees International Union (SEIU). The Supreme Court will soon decide whether to hear her case that asks on what basis, besides raw political power, a state may compel independent home-care workers and other similarly situated self-employed persons to support and associate with a labor union against their will. For the sake of workers’ First Amendment rights, it should take the case.

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone.

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